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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: As I understand what you are trying to say is that in the review petition court has referred certain questions to the larger Bench.

Prashant Padmanabhan: Yes

Charu Mathur: Right?

Prashant Padmanabhan: Yes.

Charu Mathur: Where the question is not limited only to the Sabarimala case but to the other issues like FGM or your Parsi entry into the Fire Temple plus any other religious interpretation questions that can arise in future.

Prashant Padmanabhan: Yes.

Charu Mathur: So essentially as I understand what you are saying is, they are asking the court to decide in abstract, the interpretation of law without facts... Am I correct or not?

Prashant Padmanabhan: Yes. That is somewhat correct, Accurate. See that has happened once. The abstract question of law was referred to a larger bench when the Aadhar case was being heard, they framed one question whether there is a right to privacy, whether that is a fundamental right? That one question of law was referred to a larger bench. But that was for a special reason. Because when the Aadhar case was being heard, there was a difficulty because there was an earlier Supreme Court judgment which says that right to privacy is not a fundamental right. So they found it difficult to argue further. Therefore, that question alone was referred to a larger Bench. In the review as I said earlier, the review ought to be decided according to the present law. It need not get the old law overruled and then decide the review.

Charu Mathur: Right.

Prashant Padmanabhan: Review is for the limited purpose of correcting an error apparent on the face of the original order. There is no finding. In fact in the review order, when the reference was made that the original judgment is wrong for so and so reasons. No judge says it. They only said these questions may come up again and there is a need for an authoritative pronouncement. This, as you rightly pointed out, court observed that, of course, Parsi women issue is also pending, Muslim women’s entry into mosques also may come up and some such issues and female genital issues—those types of issues Chief Justice Gogoi made mention of all those issues and held that it is better if it is decided by a larger bench.